Mickey in Chains

I was fairly certain of my future a few days ago. I believe in the power of the law. I believe that the law is a slow-moving system, yes, but remarkably resiliant. Our courts are far more stable, true, and just than our legislature. It is ironic, of course, because our courts are the only branch that is not elected. But our courts draw on legislative, constitutional, and judicial tradition and history to apply law to our society. The court must back up each action with citation, and that is its biggest strength: it is the only branch of government that really has a firm grasp of the history of America, that can and must look back at other decisions and findings in order to interpret what is presented today. The court is conservative, meaning that it is resistant to change, but it able to take change into account and act on it.

The problems I have seen are in how the court handles new issues introduced by the internet. The internet is a fundamentally different medium, and often the old analogies do not apply. Meanwhile, our jurists, wise members of society who are generally aged, do not necessarily grasp the implications of some new technologies. We need action to change how intellectual property, fair use, free speech, interstate commerce, and free access are interpreted (not to mention acted upon by the legislature). This is what I hoped to pursue.

All this has changed now that the Supreme Court has ruled on Eldred. In one swift act, our most learned and thoughtful court has once again shown that it can fail, and fail miserably. The first notable instance for me was Bush v. Gore, in which I hoped the court could draw on its wisdom and massive knowledge and bring us to a fair and equitable and just outcome. Instead, we have a decision that any first-year legal student (or even undergrad 😉 ) can read and instantly denounce as bad law. Then we have Eldred, wherein the court simply chose to ignore the central argument of the petitioner and instead rule in favor of Congress and the huge media conglomerates, even when such a ruling is clearly wrong.

I have to ask myself — do I really want to be a lawyer when these sort of things are happening? Can I really change things when our highest court can fail so miserably? If my hero, Lawrence Lessig, cannot prevail, what hope do I have? Meanwhile, I’m taking a class called Law, Technology, and Innovation, in which the professor/lawyer confesses willingly that she doesn’t understand new technology and that such an understanding doesn’t matter for this class. The internet is no different, she says, than innovations of yore, this time is much less exciting than the 1900s and the amazing new invention of the automobile, nevermind that we had trains and horses long before then.

The internet is not a newspaper, it is not a book, it is not a town hall. It is all of those things and so much more. It is a platform for change. Marketing tool? Sure. But also peer to peer file trading, bulletin boards, news conglomeration sites, data mining, Lexis-Nexus, raw data, government reports, millions of stories and thoughts and voices all brought together in a gel that anyone can mold and modify and change and create. This is DIFFERENT, and it is worth fighting for, before the outside forces of SAMENESS destroy it’s potential. And if I can’t count on the court, to whom can I turn?

2 replies on “Mickey in Chains”

  1. Though I was extremely disappointed by the Eldred ruling, my reaction was not a loss of respect for the Supreme Court or the judicial branch in general. Instead, it was a sad acceptance and a bit of respect for the courts. Was the decision really clearly wrong? A while back when I first read the Eldred argument, I thought it was brilliant. Here was a creative interpretation of the constitution, which could be used to help counteract the purchasing of law which has been plaguing our system of government for decades. However, I always knew in my heart of hearts, that it was a creative interpretation, one that hadn’t been intended by the founding fathers. Lessig gave the courts a chance to make some NEW law and decide to choose a plausible interpretation to grant itself some new powers. When it comes down to it, laws are supposed to be made in congress and interpreted in the courts. It is only since congress has been failing in working towards the public good that we hope that our courts, who like you said are far more stable than our legislature, would take it upon themselves to interpret the constitution in a non-obvious way to create some law that would be good for society at large.

    But that’s not their job. Their job is to interpret law that congress and our forefathers wrote. If you ask yourself whether the founders meant by “limited Times” that copyright could not be retroactively extended, the answer is well, probably not. If congress had not abused its power we wouldn’t be sitting here hoping that the law meant something it did not. I cannot fault the courts for finding the way they did; I can only be frustrated with congress for being whores in the first place. A win in Eldred would have been yet another bandaid for a problem which shows no signs of being truly solved. It would have been nice, but a hack nonetheless.

  2. I forgot to mention, the proper way to solve this problem is the approach taken now, by asking congress to pass new laws. Your hero Lessig knows this, and is now promoting the Eldred act. You should do the same.

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